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ELCDismissedNot stated in the judgment (Ruling dated 26 January 2023, Kitale ELC)· [2023] KEELC 236 (KLR)

Owindi & another v Sitialo (Environment & Land Case 131 of 2000) [2023] KEELC 236 (KLR)

Environment and Land Court
26 January 2023
4,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost an 18-year-delayed bid to reopen a 2004 land judgment, showing courts will not accept late review applications used to avoid eviction.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kitale, delivered by Fred Nyagaka J on 26 January 2023, determined a Notice of Motion dated 10 August 2022 by the original defendant (applicant) seeking review and setting aside of a judgment delivered 3 November 2004 and decree of 8 December 2004, under Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The underlying suit concerned eviction and vacant possession of 0.528 hectares encroached on land parcel Trans Nzoia/Makutano/31, which the plaintiffs won in 2004. The applicant argued that surveyor reports of 2016 and 2021 showed the plaintiffs, not he, had encroached, and sought rectification of the decree to reflect registered title measurements. The respondents opposed, citing inordinate delay, absence of error apparent on the record, and the fact that the decree had twice been executed. The court identified two issues: whether the review application was merited, and final disposition and costs. It held that review requires discovery of new matter, error apparent on the record, or other sufficient reason, plus absence of unreasonable delay, and found none of these satisfied: the applicant knew his land's extent at trial, never appealed, and took eighteen years to move the court. Losing land upon implementation of a valid decree is not a ground for review. The application was dismissed with costs; the court directed the demarcation of the 0.528 hectares to the plaintiffs' parcel, correction of the register, resurvey by the National Government Surveyor within two months, and ordered the applicant to vacate within thirty days failing which he would be evicted at his own cost and cited for contempt.

Key legal issues

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01

Whether the application for review of the 2004 judgment and 2004 decree was merited under Order 45 Rule 1 and Section 80 of the Civil Procedure Act

Holding

The application failed: there was no error apparent on the record, no new evidence that could not with due diligence have been produced at trial, and the eighteen-year delay was unexplained.

Reasoning

The court found the applicant knew the extent and proprietorship of his land at trial and could have filed a survey report then. The surveyor reports of 2016 and 2021 were not new matter. Having not appealed, the applicant was taken to have accepted the judgment, and dissatisfaction with the consequence of implementing a valid decree is not a ground for review. Review cannot replace appeal.

p. 7
02

Whether the delay of approximately eighteen years in bringing the application was fatal

Holding

Yes. The application had to be brought without unreasonable delay and the applicant gave no cogent explanation for the eighteen-year delay.

Reasoning

The court applied the equitable maxim vigilantibus non dormientibus aequitas subvenit and the constitutional and statutory values of expeditious disposal, holding that delay defeats equity and that the applicant must satisfactorily explain any delay, however short. His inaction since judgment showed he accepted its correctness until decree implementation became imminent.

p. 5

Legal principles established

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  • The conditions for review under Order 45 Rule 1 are discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.
  • An application for review is not a substitute for appeal; a party cannot squander his right of appeal and then resort to review.
  • Delay defeats equity; an application for review brought with unreasonable delay can be defeated even if the grounds are merited.
  • Submissions do not constitute evidence or pleadings; they are merely a party's advocacy.

Court orders

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  1. 1.Application for review dismissed
  2. 2.The portion of land measuring 0.528 Hectares purportedly forming part of land parcel LR No Trans Nzoia/Makutano/47 to be hived off and added to land parcel No Trans Nzoia/Makutano/31, with the Land Registrar to correct the register accordingly
  3. 3.The National Government Surveyor in charge of Trans Nzoia directed to resurvey the two parcels and erect beacons at the cost of the parties, and to report to the Court within two months
  4. 4.Applicant directed to vacate the 0.528 Hectares portion forthwith, and in any event not later than thirty (30) days of the Ruling, failing which he shall be forcefully evicted at his own cost and may be cited in contempt of court
  5. 5.Applicant to bear the costs of the Application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure ActSection 80
  • Constitution of Kenya, 2010Article 50(2)(e)
  • Environment and Land Court ActSection 3
  • Civil Procedure Rules, 2010Order 11 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 1(a) (cited by applicant)

Cases cited (11)

  • Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR (Nairobi Misc Civil Application No 317 of 2018)
  • Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others
    Sc Pet 18 of 2014, [2014] eKLR
  • Christopher Odhiambo Karan v David Ouma Ochieng & 2 Others
    [2018] eKLR
  • Pinnacle Projects Limited vs Presbyterian Church of East Africa, Ngong Parish & Another
    [2018] eKLR
  • SM v HGE
    [2019] eKLR
  • Steel and Morris v United Kingdom
    [2005] ECHR 103
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • Muyodi v Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • re Estate of Japhet Avugwi Luseno (Deceased)
    [2020] eKLR
  • Francis Njoroge Vs Stephen Maina Kamore
    (2018) eKLR
Jurisdiction invoked
Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Owindi & another v Sitialo (Environment & Land Case 131 of 2000) [2023] KEELC 236 (KLR)", Case Analysis (2023). Not stated in the judgment (Ruling dated 26 January 2023, Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/236/eng@2023-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.